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The CMG Voice

Robotic Surgery is here. Is it safe?

Posted Wednesday, May 8, 2013 by Tyler Goldberg-Hoss

That question is currently being asked in a courtroom in Kitsap County. Intuitive Surgical, the maker of the da Vinci surgical system, is defending itself from accusations that it isn’t safe when the company’s profits drive surgeons and hospitals to use it without proper training.

This current case involves a prostatectomy performed in 2008 on Fred Taylor with the aid of the da Vinci robot. The robot acts in much the same way as a typical laparoscopic procedure, insofar as small holes are made to pass tools through, eliminating the need to make a bigger cut, otherwise known as an “open” procedure.

What’s different is that, instead of the surgeon holding onto the tools him or herself, the surgeon is sitting at a console away from the patient, controlling the robotic arms and tools that are inside the patient.

Unfortunately, there were complications during Mr. Taylor’s surgery, and he suffered significant injuries. He died some time later, and the plaintiff in the case, his widow Josette, brought this lawsuit.

Much of the plaintiff’s case centers on the idea that the company’s profits - and not the safety of the people upon which robotic surgery was performed - dictated the use of the robot. Hospitals are pushed to purchase the robot lest they are left behind technologically. And doctors are pressed to use them by Intuitive salesmen who profit on each surgery performed, even when the doctors are insufficiently trained.

The trial is expected to last into next week. Bloomberg News is covering the events. Here is a link to their most recent story:

Intuitive Salesman Says Robotic Surgeries Drove Salaries

CNBC has also done an investigation on the da Vinci. Here’s a cite to the first of four videos:

CNBC Video #1

Finally, the Seattle Times published this last Friday:

Failed robotic surgery focus of Kitsap trial

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Hospital Equipment Alarms

Posted Monday, May 6, 2013 by Gene Moen

In modern hospitals the health care providers rely more and more on machines. A patient’s well-being is maintained through monitoring devices (picture the screen above the patient’s bed showing a pulse), breathing-assistance machines, and drug dispensing methods. The failure of any of these devices, or a malfunction, can adversely affect the patient’s well-being or even cause a death.

Almost all of these machines have alarms or other means of alerting the provider when the machine isn’t working properly. But the machines and their alarms also have to be regularly checked and tested to be sure the alarms are working properly. In a hospital’s basement or other out-of-site location are the technicians who do this. Often the manufacturer of the devices will also periodically check the machine’s performance, including the alarm systems.

A hospital is required to keep meticulous records of a machine’s maintenance and regular testing. Sometimes a case against a hospital will depend on those records, rather than the patient’s regular medical records, to show that a hospital was negligent in its equipment maintenance or testing and it caused harm to a patient.

A recent article published by The Joint Commission includes a number of recommendations for hospitals to ensure that their alarms are well maintained and working properly. Here is a link to the article:

Joint Commission Alert Addresses Medical Device Alarm Safety in Hospitals

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Medical Negligence Wrongful Death Cases

Posted Friday, April 26, 2013 by Gene Moen

Medical errors and negligence can lead to the death of a patient. When it does, a claim is more than one for medical negligence; it becomes a wrongful death case.

Under Washington law, when a patient dies as a result of medical negligence there are two basic types of claims that can be brought: a claim by the decedent’s Estate for certain losses suffered by the decedent, and a claim on behalf of the spouse and/or children of the decedent for the losses they have suffered as a result of the death. Both kinds of cases may be brought only by the Estate’s personal representative (such as an executor) who is appointed by the court upon application by the decedent’s family. In effect, the personal representative wears two hats, one on behalf of the Estate and one on behalf of the beneficiaries. Both kinds of claims are usually brought in one lawsuit.

The claim on behalf of the Estate consists of claims that were caused by the negligence and that could have been brought by the decedent had he/she lived, as well as claims for the lost future net income caused by the shortened life. For example, if the negligence resulted in a prolonged illness before the death, the injured person could have brought a lawsuit for the medical expenses and other harms and losses he/she suffered. That claim is not extinguished by the death, and the Estate can bring a claim for compensation.

The net income loss consists of the projected future earnings less the amount the decedent would have consumed had he/she lived; it is sometimes called the “net accumulations” of the estate. If the decedent was a high-income earner that amount can be substantial. For many low-income earners, however, statistics show that most if not all of his/her income will be consumed and there are no “net accumulations” that would remain even if the patient had lived to a normal life expectancy.

A wrongful death case is also brought on behalf of the “statutory beneficiaries,” i.e., the surviving spouse and children, including step-children, to compensate them for what they have lost as a result of the death. Adult children fall in that category as well. With rare and limited exceptions, losses suffered by other family members, such as parents and siblings, are not compensated in Washington State.

That means that the death of a patient who reached his/her eighteenth birthday, unless he/she is married or has children, will ordinarily not give rise to a wrongful death claim. There have been many sad cases of young adults living at home who die because of gross negligence, causing great anguish and grief for the parents who must then be told that there are almost no damages that can be sought in a wrongful death claim. For several decades, the Washington State Association for Justice (the organization of plaintiff’s attorneys) has sought changes in Washington law to plug this tragic gap in our wrongful death laws, but to date those efforts have not been successful.

If a beneficiary is a minor child, any settlement of a wrongful death claim must be approved by the court after investigation by a court-appointed “settlement guardian ad litem.” The court has authority to modify or approve the distribution of settlement proceeds and the amount of attorney’s fees and costs incurred in the claim. It also will direct how the minor’s proceeds will be handled during the child’s minority, such as by placing them in a blocked bank account or purchasing an annuity to pay money to the minor after he/she reaches the age of 18.

Under Washington law, damages for “grief” may not be sought in a wrongful death case except in cases involving the death of a child. The damages are considered “fixed” at the time of death, and wrongful death lawsuits typically focus on the decedent and his/her qualities as a spouse or parent, and the jury then places a value on the losses suffered by the beneficiaries. The fact of re-marriage by a surviving spouse is not admissible at trial.

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Obstetrical and Birth Trauma Cases

Posted Wednesday, April 24, 2013 by Gene Moen

Cases relating to obstetrical malpractice are often the most complex and costly cases a lawyer will handle. Part of the reason is that the injuries are often so catastrophic: a child may be born with cerebral palsy or brain damage that will result in huge care costs for the child’s lifetime. Those care costs can amount to many millions of dollars. And, of course, the impact of a disabled child on the parents can be life-long and devastating to their family.

Many birth-trauma cases involve a delay in offering, or performing, a cesarean section in the face of fetal heart-monitoring or other indications that a fetus is in trouble. Although there are numerous guidelines and articles about this subject, some physicians will persist in trying to deliver a child vaginally even when there are red flags indicating a need to consider a cesarean section delivery.

Other cases will involve a brachial plexus injury (Erb’s palsy) because the baby becomes lodged in the birth canal and the pulling required to get the baby out stretches or even tears the brachial plexus nerve or nerve roots. The result can be a permanent loss of function of the baby’s arm and require extensive surgery to try to ameliorate the damage.

Some obstetrical cases involve a failure to appreciate that a pregnancy is a high-risk one that requires more extensive and intensive monitoring of the pregnancy, or that requires certain actions that may prevent an early birth, such as a cerclage procedure (where the uterus is lax and needs to be sewn in a purse-string fashion) to avoid a too-early delivery. Other cases may involve a failure to realize that the baby is too large to attempt a vaginal delivery. This can occur, for example, when the mother has undiagnosed gestational diabetes, leading to an overly-large baby.

The preparation of an obstetrical case often requires many experts who are retained by the plaintiff’s attorney, including obstetricians, maternal-fetal specialists, pediatric neurologists, and life-care planners. In some cases, the plaintiff will have to retain a dozen or more experts, and the defendants will have an equal amount or more. Because of the high costs and risks of an obstetrical case, a plaintiff’s attorney, before taking it on, will do an intensive and careful evaluation of the facts of the case and the potential for a successful outcome. Pursuing these cases requires a huge amount of time and resources. They are not cases for the inexperienced or the faint-of-heart.

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Subrogation Claims

Posted Monday, April 22, 2013 by Gene Moen

In almost every medical malpractice claim, there are related medical expenses that were paid by health insurance or by a government program, such as Medicare or Medicaid. What most people don’t realize is that, when there is a settlement of a malpractice claim, the health insurance company or the government program usually has a right to be repaid all or part of the amounts it paid for medical care caused by the malpractice.

In legal terms, those entities are “subrogated” to the malpractice claim, which means they stand in the shoes of the claimant to recover what they have paid. This can sometimes be an impediment to resolution of a claim because the amounts claimed are often so large that, after payment of fees, costs, and subrogation amounts, it does not leave enough for the injured person.

Government programs such as Medicare, Medicaid, and Labor & Industries, have statutes that provide that they share on a pro-rated basis in the fees and costs necessary to obtain a recovery. Some programs also provide for a method of reducing the subrogation claim to reflect difficulties of proof as to liability or damages or to reflect hardship if the full subrogation amount were to be paid. And some health insurance policies also include such language in their policy documents, or are willing to negotiate as to the amount of a subrogation claim that must be re-paid.

Washington State also has case law that requires a sharing in fees and costs in most subrogation situations (these do not include government programs like Medicaid or L & I). There is also a case that specifies that subrogation claims must be paid only if the injured person is “made whole” first. In other words, the first amounts from a settlement go to compensate the claimant for physical injuries and then what is left can be used to pay the subrogation claim. This situation typically comes into play where there is limited insurance coverage for a defendant so that a settlement is for less than full value of the claim, but it may also apply when other factors lead to a partial rather than a full-value settlement.

It is not uncommon to settle a claim without knowing what the final subrogation interest will be. This often occurs in cases where Medicare paid for the related medical care. Sometimes there can be a long delay, after a case is resolved, before negotiations with Medicare allow a final figure to be reached. When these delays occur, it is common that the settlement agreement requires that the full amount of the Medicare lien be held in the trust account of the claimant’s attorney until there is a final resolution.

There can also be issues determining what medical expenses were caused by the negligence, and what expenses would have been necessary even without negligence. An example is a case involving a delay in diagnosis of cancer. The settlement with the defendant may reflect only the additional care needed because of a different stage of the cancer or a reduced life expectancy. But the full treatment expenses, including chemotherapy, may have been required even without the negligent delay. In such cases, nurses or even physicians have to sign declarations as to whether a medical expense is related or not for purposes of determining whether it should properly be part of the subrogation interest.

A major difficulty in this area of law was highlighted in a recent U.S. Supreme Court case, decided on April 17, 2013, regarding ERISA policies: US Airways v. McCutchen. ERISA is the Employee Retirement Income Security Act of 1974, a federal law under which many employer-paid health insurance policies are issued. Because the policies are issued under federal law, state laws or cases, such as those mentioned above in Washington, do not apply.

The thrust of the Supreme Court’s decision is that an employer or employer-issued ERISA policy can demand full payment of its subrogation lien, without sharing in fees or costs and regardless of whether the injured person was made whole. In Mr. McCutchen’s case, that meant his net recovery of $66,000 would have to be paid in full to his employer who paid approximately that amount for related medical care. The result is that he would receive nothing from having pursued his liability claim and nothing for his other harms and losses.

Most law firms representing plaintiffs are now going to carefully investigate, before taking on a case, whether an ERISA policy would have a subrogation claim. For cases where there is disputed liability and a large potential lien, it may not be feasible to pursue the case at all. There is a need for Congress to revisit ERISA and fashion new legislation that will allow injured persons to pursue meritorious cases and have a reasonable means of negotiating a reduction in an ERISA lien.

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